Citation Nr: 1436846
Decision Date: 08/18/14 Archive Date: 08/27/14
DOCKET NO. 12-16 961 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee.
2. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee.
3. Entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain.
4. Entitlement to service connection for sleep apnea.
5. Entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. Durham, Counsel
INTRODUCTION
The Veteran served on active duty from September 1982 to September 2002.
This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and October 2011 rating decisions.
The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the St. Petersburg, Florida, RO in April 2014. A transcript of this hearing has been associated with the claims file.
The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R.
§ 3.103(c)(2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
The Board notes that the claims file contains an August 2013 statement of the case (SOC) addressing the issue of entitlement to an evaluation in excess of 30 percent for tension headaches with an effective date prior to July 10, 2012. However, as the Veteran did not submit a timely substantive appeal with regard to this issue, this issue is not currently on appeal before the Board.
The Board also notes that an April 2012 SOC included the issues of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness and entitlement to service connection for sleep apnea. In June 2012, the Veteran was issued another SOC addressing his bilateral knee and low back disability claims. On August 14, 2012, the Veteran submitted a signed substantive appeal indicating that he wished to appeal all issues listed on the SOC. As noted in the April 2014 hearing transcript, the Board is liberally construing this appeal to apply to both the April 2012 SOC and the June 2012 SOC. Therefore, the Board finds that the Veteran's bilateral knee disability, low back disability, and sleep apnea claims are all on appeal before the Board. With regard to the issue of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness, the April 2014 hearing transcript reveals that the grant of service connection separately for vertigo satisfied the Veteran's appeal of this issue. As such, this issue not considered to be on appeal before the Board, as will be discussed below.
The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304.
In August 2013, the Veteran submitted a claim for service connection for hemorrhoids and a cardiovascular condition. In May 2014, the Veteran submitted a claim for entitlement to an increased rating for hypertension with dizziness, as well as claims for entitlement to service connection for hemorrhoids, cardiovascular signs or symptoms, degenerative arthritis, a stomach condition, a bilateral eye condition secondary to hypertension with dizziness, an anxiety condition secondary to cardiovascular signs or symptoms, and a rectal bleeding condition secondary to cardiovascular signs or symptoms. These issues have not been addressed by the RO. As such, the issues of entitlement to an increased rating for hypertension with dizziness; and entitlement to service connection for hemorrhoids, cardiovascular signs or symptoms, degenerative arthritis, a stomach condition, a bilateral eye condition secondary to hypertension with dizziness, an anxiety condition secondary to cardiovascular signs or symptoms, and a rectal bleeding condition secondary to cardiovascular signs or symptoms have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran's service-connected degenerative joint disease of the left knee is manifested by flexion to 130 degrees and complaints of pain, locking, clicking, buckling, giving way, and swelling.
2. The Veteran's service-connected degenerative joint disease of the right knee is manifested by flexion to 135 degrees and complaints of pain, locking, clicking, buckling, giving way, and swelling.
3. The Veteran's service-connected lumbar strain is manifested by flexion of 0 to 90 degrees, extension of 0 to 15 degrees, left lateral flexion of 0 to 20 degrees, left lateral rotation of 0 to 20 degrees, right lateral flexion of 0 to 30 degrees, right lateral rotation of 0 to 30 degrees, and complaints of stiffness, spasm, and pain.
4. On April 10, 2014, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal of the issue of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness is requested.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261 (2013).
2. The criteria for a disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261 (2013).
3. The criteria for a disability rating in excess of 10 percent for service-connected lumbar strain have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (2013).
4. The criteria for withdrawal of an appeal of the issue of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
With regard to the Veteran's claim for entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness, the Veteran has withdrawn his appeal of this issue, as will be discussed below. As such, discussion regarding statutory and regulatory notice and duty to assist provisions is not necessary with regard to this claim.
With respect to the Veteran's bilateral knee and lumbar spine claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.
A VCAA letter dated in February 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned.
The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist.
With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).
The Veteran was provided VA joint examinations which addressed his lumbar spine and bilateral knee disability claims in March 2011. There is no objective evidence indicating that there has been a material change in the severity of these service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2013). While the Veteran indicated at the May 2014 hearing that his knees have been getting worse, he has not specifically asserted that his bilateral knee disability increased in severity since he was last examined. The Board acknowledges that the Veteran asserted in a July 2013 VA treatment record that he experienced clicking, buckling, and swelling, which he did not report at the March 2011 VA examination. However, the Board finds that the claims file contains no objective evidence of a material change in the severity of the Veteran's service-connected bilateral knee disability since he was last examined. Moreover, the Veteran's subjective complaints are considered below in evaluating these claims. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The Board finds these examination reports to be thorough and consistent with contemporaneous medical records. The examinations in this case are adequate upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
II. Analysis
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013).
The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).
1. Entitlement to separate evaluations in excess of 10 percent each for service-connected degenerative joint disease of the left and the right knee.
In an October 2011 rating decision, the RO continued separate 10 percent ratings under Diagnostic Codes 5010-5261 for service-connected degenerative joint disease of the left and the right knee. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). The Veteran is seeking a higher evaluation.
Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II (2011).
Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a (2013).
According to Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a (2013).
Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both currently codified under 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (2004).
Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2013).
Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013).
When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.
The Board notes that the Veteran underwent a VA examination most recently with respect to his bilateral knee disability in March 2011. At this examination, the Veteran reported that he experienced locking of both knees after prolonged driving or sitting and occasional pain of both knees. The Veteran denied deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, effusions, and inflammation. The Veteran reported no incapacitating episodes. Upon examination, the examiner found crepitus and tenderness bilaterally. The examiner noted no clicks, snaps, grinding, instability, patellar abnormality, or meniscus abnormality bilaterally. The examiner noted objective evidence of pain with active motion bilaterally. Extension was noted as normal (0 degrees) bilaterally. He had left knee flexion to 130 degrees, and right knee flexion to 135 degrees. While there was objective evidence of pain following repetitive motion, there was no additional limitations after 3 repetitions of range of motion. The Veteran did not have ankylosis.
The claims file also contains VA treatment records, which document complaints of knee pain. In a July 2013 VA treatment record, the Veteran complained of bilateral knee pain with clicking, buckling, and occasional locking and swelling. The Veteran was noted as having full range of motion of the knees with discomfort on flexion.
The Board also notes that the Veteran reported at the May 2014 hearing that his knees give way.
With respect to granting an increased rating under Diagnostic Code 5010, the Board notes that the Veteran is already assigned separate compensable evaluations for each knee for limitation of motion under the Diagnostic Code 5261. As such, an increased or additional compensable rating cannot be assigned under Diagnostic Code 5010 for either knee.
With respect to granting an increased rating under Diagnostic Code 5261, there is no medical evidence of record reflecting that either of the Veteran's knees has a limitation of extension to 15 degrees, as needed for an increased evaluation of 20 percent under this diagnostic code. As such, increased ratings cannot be assigned for either knee under Diagnostic Code 5261.
However, the Board has considered alternative avenues through which the Veteran may obtain increased disability ratings.
With respect to granting an increased rating under Diagnostic Code 5260, there is no clinical evidence of record reflecting that either of the Veteran's knees has a limitation of flexion to 45 degrees, as needed for a compensable evaluation under this diagnostic code. As such, increased ratings cannot be assigned for either knee under Diagnostic Code 5260.
Diagnostic Code 5257 addresses impairment of the knee in the form of recurrent subluxation or lateral instability. The claims file contains no subjective or objective evidence reflecting that the Veteran experiences recurrent subluxation of either knee. With regard to lateral instability, the Board acknowledges that the Veteran has reported that his knees gives way at time. However, despite his complaints, there is no objective medical evidence diagnosing instability of either knee. As such, increased or separate compensable evaluations are not available under Diagnostic Code 5257.
Diagnostic Code 5258 addresses dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion. While the Veteran has complained of pain and locking of his knees, there is no medical evidence of record reflecting that the Veteran has dislocated semilunar cartilage of either knee. Additionally, the Veteran is already receiving separate 10 percent evaluations for each knee under Diagnostic Code 5261 for noncompensable limitation of motion that is accompanied by complaints of pain and locking. As such, increased or separate compensable evaluations are not available under Diagnostic Code 5258.
Diagnostic Code 5259 addresses symptomatic removal of semilunar cartilage. There is no clinical evidence of record reflecting that the Veteran has undergone removal of semilunar cartilage of either knee. Therefore, Diagnostic Code 5259 is not applicable.
The remaining applicable diagnostic codes relating to knee disabilities include Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). As there is no evidence of record showing that the Veteran has ankylosis, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum, with regard to either knee, these diagnostic codes are not applicable.
With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board acknowledges the Veteran's complaints of knee pain. At the March 2011 VA examination, left knee flexion was noted to 130 degrees, and right knee flexion was noted to 135 degrees, with objective evidence of pain following repetitive motion. However, no additional limitations after 3 repetitions of range of motion was noted. Additionally, the claims file contains no other medical evidence reflecting that the Veteran suffers additional limitation due to subjective complaints or repetitive motion. Further, the Veteran is already receiving separate 10 percent evaluations under Diagnostic Code 5261 for each knee for noncompensable limitation of motion that is accompanied by pain. Therefore, the Board finds that the current evaluations already contemplate the Veteran's functional loss, and that increased ratings under Deluca are not warranted.
Finally, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The first of the three elements of an extraschedular rating under § 3.321(b)(1) is a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun, 22 Vet.App. at 115. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.
The first Thun element is not satisfied here. The Veteran's service-connected bilateral knee disability is manifested by complaints of pain, locking, clicking, buckling, and swelling, and by limitation of motion. These complaints, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knee, as well as the provisions under Deluca and under 38 C.F.R. §§ 4.40 or 4.45, provide disability ratings on the basis of the overall severity of the disability, to include subjective complaints. See 38 C.F.R. §§ 4.40 , 4.45, 4.71a, Diagnostic Code 5261 (2013). Given the ways in which the rating schedule contemplates knee disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's service-connected bilateral knee disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115.
With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his service-connected bilateral knee disability has caused marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.
In summary, the Board concludes that the preponderance of the evidence is against the claims for increased ratings for the Veteran's service-connected degenerative joint disease of the left and the right knee. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra.
2. Entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain.
In an October 2011 rating decision, the RO continued a 10 percent evaluation for service-connected lumbar strain under Diagnostic Code 5295. The Veteran is seeking a higher rating.
The schedule for rating spine disabilities was changed, effective September 26, 2003, to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). Diagnostic codes for all diseases and injuries to the spine were renumbered. As the Veteran's claim was received after September 26, 2003, only the current rating formula must be considered and any regulation changes made prior to the September 26, 2003, changes are irrelevant for the purposes of this claim.
Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2013).
For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2013). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id.
Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013).
Under Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code.
For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2).
When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.
The Veteran underwent a VA examination in March 2011, at which the Veteran reported that he experienced low back pain about 3 times per week lasting the whole day. Prolonged standing and sitting, bending, squatting, or sudden moves aggravated pain and lying down on hard flat surface with bent knee improved pain. The Veteran reported stiffness, spasm, and pain. The Veteran did not report incapacitating episodes. His posture, head position, and gait were normal. He had symmetry in appearance. He had no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis. Examination of the thoracolumbar sacrospinalis revealed spasms, pain with motion, and tenderness bilaterally. He did not have atrophy, guarding, or weakness. With regard to range of motion, he was noted as having flexion of 0 to 90 degrees, extension of 0 to 15 degrees, left lateral flexion of 0 to 20 degrees, left lateral rotation of 0 to 20 degrees,
right lateral flexion of 0 to 30 degrees, and right lateral rotation of 0 to 30 degrees. The Veteran had pain on active range of motion and following repetitive motion. However, there was no additional limitation after 3 repetitions of range of motion. Detailed reflex, sensory, and motor examinations revealed normal findings. Muscle tone was normal with no muscle atrophy.
The Board has also reviewed relevant VA treatment records, which document complaints of back pain.
At the May 2014 hearing, the Veteran reported that he experiences back spasms.
With regard to assigning an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that there is no medical evidence of record reflecting that the Veteran's service-connected disability results in a limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As such, an evaluation in excess of 10 percent is not warranted for this service-connected disability under the General Rating Formula for Diseases and Injuries of the Spine.
With regard to applying the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board finds no medical or lay evidence in the record reflecting that the Veteran has been prescribed bedrest by a physician for his service-connected lumbar spine disability for any period of time on appeal. As such, an increased rating cannot be assigned under this criteria.
The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. However, the claims file contains no objective or subjective evidence of neurologic abnormalities pertaining to the Veteran's lumbar spine disability. As such, an increased rating cannot be assigned under this criteria.
With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board has considered the Veteran's complaints of pain and stiffness. However, the March 2011 VA examiner specifically indicated that the joint function of the spine is not additionally limited after repetitive use. Additionally, the claims file contains no other medical evidence reflecting that the Veteran suffers additional limitation due to subjective complaints or repetitive motion to a severity so as to meet the criteria of an increased rating for loss of range of motion. Therefore, the Board finds that the current evaluation already contemplates the Veteran's functional loss, and that an increased rating under Deluca is not warranted.
Finally, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the first Thun element is not satisfied. The Veteran's service-connected lumbar spine disability is manifested by complaints of stiffness, spasm, and pain, and by limitation of motion. These complaints, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the spine, as well as the provisions under Deluca and under 38 C.F.R. §§ 4.40 or 4.45, provide disability ratings on the basis of the overall severity of the disability, to include subjective complaints. See 38 C.F.R. §§ 4.40 , 4.45, 4.71a, Diagnostic Code 5295 (2013). Given the ways in which the rating schedule contemplates spine disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's service-connected lumbar spine disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115.
With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his service-connected lumbar spine disability has caused marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.
In summary, the Board concludes that the preponderance of the evidence is against the claim for a rating higher than 10 percent for the Veteran's service-connected lumbar strain for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. See Hart, supra.
3. Entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal of the issue of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed.
ORDER
Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee is denied.
Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee is denied.
Entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain is denied.
The appeal of the issue of entitlement to an evaluation greater than 10 percent for service-connected hypertension with dizziness is dismissed.
REMAND
After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claim for entitlement to service connection for sleep apnea.
The Veteran has asserted that his sleep issues date back to his active duty service.
A review of the service treatment records reveals no treatment for or diagnoses of sleep apnea. On December 1987 and August 1992 reports of medical history, the Veteran reported that he had frequent trouble sleeping. However, on his June 2002 report of medical history, the Veteran responded 'no' to the question of whether he had frequent trouble sleeping.
In a November 2009 VA treatment record, the Veteran asked about getting a sleep study. He reported that he snored and his significant other had noted times where he may possibly have had apnea. A January 2010 VA treatment record noted that a sleep study revealed that the patient's history and physical examination were highly suggestive of sleep disordered breathing. An April 2010 VA treatment record noted the Veteran as having mild obstructive sleep apnea.
In light of the Veteran's in-service complaints of trouble sleeping and the fact that he has recently been diagnosed with obstructive sleep apnea, the Board finds that a VA examination is necessary for the proper assessment of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002).
Additionally, the Board notes that the Veteran was provided a VCAA letter in April 2010 which addressed his sleep apnea claim. This letter did not, however, afford the Veteran appropriate notification of the requirements regarding direct service connection. Therefore, upon remand, the Veteran should be given proper notice of the requirements for establishing direct service connection.
Finally, upon remand, the AOJ should take this opportunity to obtain any VA treatment records that have not yet been associated with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a direct service connection claim.
2. Obtain any and all VA treatment records that have not yet been associated with the claims file, to specifically include medical records from August 6, 2013, to the present from West Palm Beach VA Medical Center (VAMC) (and associated clinics).
3. Schedule the Veteran for a VA examination for his sleep apnea claim. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner must render an opinion as to whether the Veteran currently has a diagnosis of sleep apnea. If so, opinions should be provided as to whether it is at least as likely as not that the Veteran's sleep apnea began in, or was caused or aggravated by, his military service.
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
4. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the SOC was issued with respect to this claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC).
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2013).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs